Sharon

9th Circuit Appeals and the Inyo Exploratory (12 Hole) Drilling Case: Did The Forest Service Ask Them to “Do Violence to” NEPA? Updated

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NOTE: This post has been updated with information from Dan Farber of UC Berkeley Law. Thanks, Dan!  I’ve added his thoughts in red below.

It’s a bit hard to keep track of what’s in the statutory amendments of last year and what’s in the new NEPA regs that Jon covered yesterday. I think this is a fascinating story that illustrates the confusion that can result when Congress and Admins mess around with the NEPA statute and regs..but this is only the tip of a future iceberg of glacial progress as the courts redo NEPA case law with the new NEPA regs. It reminds me a bit of the Paul Simon song:

Slip slidin’ awaySlip slidin’ awayYou know the nearer your destinationThe more you’re slip slidin’ away

The basic story of this case  is that there is a request for a permit for exploratory drilling which will be completed in a year as per an existing CE.  But the FS wanted them to do habitat restoration and monitoring, which would take longer.  So they used the habitat restoration CE for that. Here are the details of the project according to Courthouse News:

Kore Mining Ltd. wants to drill 12 holes, 600 feet deep, to try to find gold on federally owned land — which is legal, so long as it applies for a permit. The federally owned land in question is, as Mueller describes it, “a wide and gently sloping expanse of 1,848 shrubby acres” pocked with hundreds of holes bored by mining companies in the 1980s and 1990s. At the time, technical limitations meant that those holes couldn’t go deeper than a few hundred feet. But Kore Mining believes there might be gold up in them there hills and that deeper drilling might be possible today.

Kore’s proposal would require clearing vegetation and building about a 1/3-mile temporary access roads. The U.S. Forest Service concluded in 2020 that the project “was unlikely to have any significant effects on the environment” since it would take less than a year and require less than a mile of new roads.

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project. Of particular concern was the bi-state sage grouse, an iconic bird famous for its extravagant mating dances — “Picture a spike-tailed, puff-chested small turkey in a brown tuxedo, shaking and strutting in the brush,” Mueller wrote.

The Forest Service then said it would not allow Kore Mining to undertake any “disturbance activity” between March and June, the sage grouse’s mating season. It also said Kore would have take a number of steps to restore the land after its exploratory drilling, including returning the land to its original slope and sowing native seeds. And a biologist would have to monitor the area for three years after the drilling stopped.

Four groups — the Center for Biological Diversity, the Western Watersheds Project, Friends of the Inyo, and the Sierra Club — filed a lawsuit in October 2021 against the U.S. Forest Service and Kore Mining to halt the project.

“This drilling project will cause exactly the kind of noise and commotion that make bi-state sage grouse abandon their habitat,” said Ileene Anderson, a senior scientist at the Center for Biological Diversity, in a statement at the time. “It’s appalling that the Forest Service is willing to push these beautiful dancing birds closer to extinction for a toxic mine.” Environmentalists also worried about the impact the drilling would have to the groundwater in the area that feeds into the Owens River, which supplies water for Los Angeles.

So basically, some groups don’t want the project.  The court case seems to have focused on the two-CE issue;that is, they used two CEs instead of an EA.

Here’s what the Judge Mueller  said about this when finding for this in March of 2023.

While the mining operation was covered under the second exception, the habitat restoration, and in particular the three-year monitoring period, would of course take longer than a year, and would those need to be covered by that first exception.

“It is undisputed that all drilling, grading and construction will finish within a year; Kore will regrade the pads and roads and cap its wells within a year; revegetation is a nonherbicidal wildlife improvement for sage grouse; and Kore will construct less than a mile of new access roads,” Mueller wrote. The question, then, was: “Can a project be approved in two or more parts, each covered by a different exclusion?”

Mueller decided yes — though it may not be ideal, “a patchwork of individually-insufficient-but-collectively-sufficient exclusions can cover a single project or action.” Or: “Zero plus zero is zero.”

I do think that restoration is a different kettle of fish than other CEs, the whole point is to improve the environment.

Now as Dan Farber of Berkeley Law said in an interesting post today,  the (so-called) Fiscal Responsibility Act was signed in June 2023 (after the court decision), saying that

After the 2023 amendments, Section 111(1) of NEPA now defines a CE as “a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment within the meaning of section.”  And section 106(a)(2) says that an agency doesn’t need an environmental assessment “if the proposed agency action is excluded pursuant to one of the agency’s categorical exclusions.”  It seems clear that the action  — a combination of drilling and restoration — does not fit “one of the agency’s categorical exclusions.”

However, that was after Judge Mueller made her decision.  So that changed the statutory landscape. Ah… but there was an appeal.

Dan says in his piece:

But what’s most striking isn’t what the court did discuss but what it didn’t mention : the fact that last year’s NEPA amendments  speaks directly to one of those issues. Apparently the word that NEPA was extensively amended a year ago hasn’t yet reached the federal courts.

So I asked Dan whether the statutes and regs for the original decision applied, here’s his emailed response:

The general rule is that an appeals court applies the law as it exists at the time of the appeal. The NEPA amendments were effective immediately, and there’s no indication in the statute that they apply only to agency decisions occurring after the amendments. So the Ninth Circuit should have considered them (or at least given some reason for refusing to apply them).  I don’t think that judges are really aware of the new law, to tell the truth, since they’re so used to operating in a setting where the statute itself is very vague and thinking all the rules come from the CEQ regs or the courts.

This is of concern (unless the goal of government is a full employment program for lawyers) for two reasons. Agencies can’t predict the future regulatory environment or future case law.  Also the idea that judges aren’t aware of this law.. this seems problematic.  Can lawyers make recommendations for topics for them to cover in their next training? Back to Dan’s original post.

The majority  said that the agency’s justification for avoiding the NEPA process was wrong, and that refusing to do an environmental assessment was such a basic violation of NEPA that it could not be considered harmless.   The dissent, on the other hand, says that the Forest Service had plainly taken as close a look at the environmental issues as it would have in an environmental assessment.  (If that’s true, one wonders, why didn’t the Service just do an environmental assessment in the first place?) For that reason, the dissent argues, any procedural error by the agency was harmless.

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This is an example of why  Forest Service people sometimes think “litigation is a crapshoot”, as my colleague JR was known to say.  From a Sierra Club piece:

The Court held that “The Forest Service asks us to adopt a view of categorical exclusions that will swallow the protections of NEPA. We decline to do such violence to NEPA’s procedural safeguards.” (Court decision at p. 25). As the Court explained: “when an agency applies CEs in a way that circumvents NEPA’s procedural requirements and renders the environmental impact of a proposed action unknown, the purpose of the exclusions is undermined. That is the case here.” (Court decision at p. 24).

Just think about it.. Judge A says “0 plus 0 equals zero”; I say restoration is by definition positive, so the sum is >0, and the Appeals judges- I think do a bit of over-hyping (is that their usual kind of language?)- “do violence to NEPA’s procedural safeguards,””swallowing the protections”- I’d argue that using the restoration CE might regurgitate a protection or two.

Do they think Mueller was “doing violence” by agreeing with the FS? Or was she just “promoting” violence?

Anyway, back to Farber’s piece:

The dissent doesn’t have a bad argument, but there are some differences between what the agency did and the environmental assessment process that could be significant. The Service did solicit public input, but the regulations governing environmental assessments require fuller opportunities to participate. Instead, “agencies shall involve the public, State, Tribal, and local governments, relevant agencies, and any applicants, to the extent practicable in preparing environmental assessments.” Asking the public whether it agrees with use of a CE isn’t the same as involving them along with governments at all levels in the preparing an assessment.

Yet according to the Courthouse News article,

During the public comment period that followed, numerous environmental groups, nearby towns and government agencies objected to the project.

It sounds like the public involvement process was similar to that of an EA in that respect (without looking at the documents).  Here’s what Dan brought up in his email:

In terms of the harmless error doctrine, the idea is that you violated the proper procedure but that it didn’t affect the outcome — no harm, no foul.  The question I raised is whether we can be sure of that. In response to one of your other questions, we do know (as I said in the post) that there were a lot of comments filed. But were they as detailed as the commenters would have offered in an environmental assessment?  After all, they were really only designed to get the Forest Service to agree to at least consider the environmental consequences rather than doing a categorical exclusion.  If there had done an environmental assessment, would the state or federal fish & wildlife people have been consulted?

That’s a really interesting take. Every CE public comments I’ve read (that being, when people don’t like the project) have been more general than “does this CE fit”? I’ve appended the summary of the response to comments below.

In fact, the agency did originally say an environmental assessment was needed, but the company complained and the agency quickly reversed itself.  (Is it a coincidence that this was the Trump Administration?) Maybe the agency should have stuck with its original position rather than shortcutting the process in its haste to approve the mining project.

Remember the 9th Circuit judge (appointed by Obama) agreed with the FS that it was a  legitimate approach.  I’m calling “unnecessary invoking of Trump” here.

In addition, an environmental assessment would have required a  Finding of No Significant Impact (FONSI), which would also have had to discuss alternatives to the proposal.  None of the judges cites any discussion of alternatives by the agency.  We don’t know if there were other, less sensitive, locations that might have been used. If there had been an environmental assessment, the agency would have had to discuss that.

This is exploration.. not a final plan.  It could well not be economic to extract there or there might not be any gold.  It makes sense to me to look at alternatives when an actual mine is proposed.  Exploration to me is mostly collecting information that is useful in preparing environmental documents and .. there is a CE for that.

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I think this illustrates a couple of things.. how judges can disagree, how some of them might not be able to keep up with NEPA at this point in time. My own experience with industry is that they did not want us to use available CEs because if it’s going to be litigated, then there’s better documentation and it’s safer. Or so the timber industry individual said, and so our OGC folks told us. If it hadn’t been for the appeal, the two CEs would have worked.

I also think Dan’s comment here is of interest, when do the facts of the case matter, and when is the idea that applying the law to this case would lead to some kind of generic CE-piling

In terms of piling up CEs, if the Forest Service’s theory was right, it wouldn’t just apply to this case.  It could potentially give agencies the power to use a bunch of CEs, shortcut the normal procedures for environmental assessment, and then claim that even though they didn’t used the required process, it was all o.k. in the end.

But of course all this is moot with the new amendments to NEPA.

You may be right that this is a situation where there couldn’t possibly have been an environmental impact, but then you wonder why there was so much opposition from the Sierra Club and others. 

My experience is that slowing a project, step by laborious legal step, is a strategy to stopping it.  I’d guess that this isn’t about the exploratory wells at all but about making an inhospitable environment for the developers.  I doubt that if the FS does an EA, that there will be no further litigation.  The company can look uphill to possible litigation on the EA, an EIS for the mine, litigation, appeal court rulings,  and so on.  Maybe the next Admin will refuse to defend the FS for some reason, who knows? With current interest rates, this degree of uncertainty would make companies (and investors) wary.

If we project this onto renewable energy projects, solar, wind and transmission may be better off because there is no exploratory stage, as with geothermal. Anything mining related will have trouble, I predict, even strategic minerals.

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Here’s the response to comments:

PUBLIC INVOLVEMENT
This action was originally listed as a proposal on the Inyo National Forest Schedule of Proposed Actions (SOPA) and updated periodically during the analysis. The project was first published in the SOPA on January 1, 2021. Public scoping was opened on April 8, 2021 and closed on May 13, 2021, which included a one-week extension of the original scoping period. Scoping letters were mailed to one address and electronic delivery was made to another 37 project subscribers through GovDelivery. Comments were collected online in the Comment Analysis and Response Application as well as through hardcopy, and email. In response to public requests, the Responsible Official decided to extent the scoping period by one week, and notified the public with a news release and email to the original email list.
The comments received expressed concerns on a number of subjects that included potential impacts to tourism, wildlife, cultural resources, water quality and recreation which was primarily about the fishery on Hot Creek. Comments also addressed geothermal and seismic activity, air quality, noise and light pollution. Technical studies completed in response to comments include KORE Long Valley Exploration Sage‐Grouse Lek Baseline Noise Monitoring and Drilling Noise Analysis; and Hydrogeologic Evaluation. Additional project design features and/or mitigations measures were also added to the plan of operation. These include:
• Sound barriers for equipment to reduce noise that might affect sage grouse.
• Shielded and directed lighting to limit potential light pollution.
• Air quality permits, if required, to be obtained through the Great Basin Air Quality
Management District
• Operator is responsible for immediate repairs of any, and all damages to roads, structures,
and improvements, which result from the operations.
• Noxious weeds will be controlled.

Most of the public comments associated this exploration drilling project with the development of a  long-term open pit mine and processing facility, which has not been proposed. The purpose of a  mineral exploration project is to assess the potential for mineral concentration at a volume that would be economically feasible to produce and does not automatically lead to an actual mine. An application has not been submitted or proposed for a mineral extraction project and if that were to occur, that application would be processed as a separate project.

 

Forest Legacy 2024 Funded Projects… and Using the Climate and Economic Justice Screening Tool

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The Wasatch Back Forest Conservation Project received funding in 2024 through the Forest Legacy Program, conserving 8,588 acres just 25 miles from Salt Lake City, UT. (Photo by the Utah Division of Forestry, Fire & State Lands)

Folks have sent me some articles about the Chief’s testimony last week on the budget. From what I’ve heard and the stories, Congressfolk don’t seem as interested as retirees (including Dave Mertz and I, as well as others)  in the Keystone Agreements and exactly where the funding is going, producing annual reports with details and so on.  We were told “you can FOIA it” and my usual sources of info have dried up.

I’ve pointed out that we have nice reports on GAOA funding and where it goes, and Forest Legacy Funding via LWCF (Land and Water Conservation Fund). So my hypothesis is that it’s important to be transparent so that Congress continues to provide funding. The Keystone Agreements are conceivably one and done, so maybe that is why there’s so little perceived need for reporting or accountability? Or maybe the funding is going towards more capacity-building or planning so it’s harder to describe any outcomes or outputs. Or maybe it’s all there somewhere on a website and I missed it.

Anyway, back to Forest Legacy. Their site shows the specifics of each project, how many acres, partners and why each particular chunk of land is important.

The press release refers to “conserving” 168K acres of forestland. I still wonder whether conservation is defined differently between USDA and Interior. If not, then “conservation leases” could include (sustainable) timber harvest.

USDA’s Forest Service is providing more than $154 million through its Forest Legacy Program for 26 projects to conserve working forests that support rural economies in 17 states. This conservation work is made possible by more than $84 million from the Land and Water Conservation Fund and nearly $70 million from President Biden’s Inflation Reduction Act – the largest climate investment in history and part of the Investing in America agenda.

Through the Forest Legacy Program, States work with local communities to identify private forestlands and develop proposals to conserve these lands as forests for their values as places for recreation, as wildlife habitat, and as sustainable sources of wood and other forest products. The Forest Service then selects the top proposals for funding through an entirely voluntary competitive process and provides grant funding to States. Some of this land will stay in private ownership and will be permanently protected and conserved as forests, while States will purchase other parcels to be managed as public land.

The Forest Legacy Program is also part of President Biden’s Justice40 Initiative, which sets the goal that 40% of the overall benefits of certain federal investments flow to disadvantaged communities that are marginalized by underinvestment and overburdened by pollution. Communities around the nation depend on forests, and the effort to conserve private forestlands will benefit Tribal Nations and other disadvantaged communities. Nearly 50% of these investments will go to conserving forests near disadvantaged communities identified by the Climate and Economic Justice Screening Tool.

But the Screening Tool doesn’t just address disadvantaged folk and pollution- so the policy and the tool don’t seem to match.

You’ll remember that I posted before here and here about the Screening Tool and its questionable protocols and data sources.

A 30-meter resolution model projecting the wildfire exposure for any specific location in the contiguous U.S., today and with future climate change. The risk of wildfire is calculated from inputs associated with fire fuels, weather, human influence, and fire movement. The risk does not consider property value.
Used in: Climate change category
Responsible party: First Street Foundation
Source: Climate Risk Data Access from 2022
Available for: All contiguous U.S. states and the District of Columbia

Both flood and fire risk take into account projected climate change- I couldn’t figure out which SSP is mapped in the CEQ EJ map. I found this update interesting from last year interesting..

The model update includes the migration from Representative Concentration Pathways (RCP) to Shared Socioeconomic Pathways (SSP), which allows for more precise assessments based on different climate scenarios. The Foundation is also expanding the flood and wind modeling to include multiple pathways, such as SSP 2-4.5 and SSP 5-8.5. Additional SSP pathways for wildfire and extreme heat scenarios are being developed for future releases this year.

I wonder whether new information about new mitigation, fuel treatment projects, etc. would show up in updates of the tool? I wonder whether it is updated? I think it’s a great idea to map the disadvantaged, but some of the criteria (not to speak of the ways the numbers are calculated) seem questionable. Given that poor people are less likely to be able to respond to any disasters, why not focus on that? And if the examples in the Forest Legacy are any indications, folks on the ground are quite capable of describing how their projects partner with Native Americans or help the poor.

As it turns out, the project scoring guide for FY 24 did not mention the maps

Benefits of projects for underserved communities and environmental justice initiatives should be highlighted where applicable. For example, benefits can be discussed within economic
benefits, water, cultural, public access, or climate resilience. Benefits for underserved communities can also be discussed in the Strategic section. Underserved communities: “underserved communities” refers to populations sharing a particular characteristic, as well as geographic communities, that have been historically underserved, marginalized, and adversely affected by persistent poverty or inequality (pursuant to Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government). Namely, these are Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and
queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality

From the “good government” perspective, I wonder whether a narrative addressed to those concerns may actually have better information than an un-updated map with unknown data quality. The best science and all that. It also sounds like looking it up on the EJ maps was an afterthought, and it turned out that the more local information actually led to “nearly 50%” being on the map.

But all agencies are apparently supposed to use this tool, according to the Q&A

The Council on Environmental Quality (CEQ), the Office of Management and Budget (OMB), and the Climate Policy Office (CPO) released the Justice40 Interim Implementation Guidance on July 20, 2021. It directed agencies to develop interim definitions of disadvantaged communities. Agencies used their interim definitions during the tool’s beta phase. Agencies will now transition to using version 1.0 of the tool to geographically identify disadvantaged communities.

So I think most people are trying to do good things, and we disagree about how best to go about it. But using ungroundtruthed data and then telling agencies that they must use it instead of what they know in the real world seems problematic to me. There seems to be a tendency to centralize decisions based on broadscale “data” (the Satellite Gaze) and privileging that over local information. Often there is no transparent effort to ground-truth these maps. That would involve intentionally requesting feedback, posting the feedback, and discussing how that feedback was used to improve the models or data collection methodologies behind the map.

Choosing those sources of data and those manipulations can also centralize political power and decision-making, either in the name of efficiency or the name of “science.” What is the best data- for a given purpose, though, is ultimately a political decision. And just because data is available doesn’t mean that it’s good or relevant.

Finally, let’s circle back to the Keystone Agreements. Must they follow the Justice40 Initiative? How will we know if they do if the project data isn’t available?

How Overseas Visitors Can Help Steward Our National Parks: PERC Report

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This report is from PERC from last December. I just visited a few National Parks, which reminded me to post it.

Dozens of the world’s most high-profile national park systems charge overseas visitors more than locals. Adopting a surcharge for visitors from abroad at U.S. national parks could significantly increase revenue, providing parks with more funding to address maintenance and improve visitor experience.

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A Higher Level of Stewardship

In dozens of countries, park visitors from abroad pay more than locals for entry.6 A higher charge levied on foreign visitors reflects their general ability and willingness to pay more. After all, the price of admission at a national park is generally a fraction of overall trip costs for visitors, especially those from abroad.7 Asking international tourists who do not support U.S. national parks through taxes to pay a little more to see them is not only reasonable, it would also provide additional resources to improve the stewardship of our “crown jewels.”

Moreover, formal evidence suggests that demand to visit U.S. national parks—in particular the highest-profile destinations—is not sensitive to admission prices, particularly for overseas visitors. One study published in 2014 found that the price of gasoline affects national park visitation more than entry fees do.8 Another study, from 2017, estimated that raising the vehicle entry fee at Yellowstone National Park by more than double—from $30 to $70—would decrease visitation from foreign visitors by a mere 0.07 percent.9 A negligible dip would be logical given that the average overseas visitor was already spending an estimated total of $4,484 on their trip. In that context, increasing fees by a mere $40 would barely register in a traveler’s budget.

The current fee system for national parks in the United States lacks nuance, with most visitors paying a flat weekly fee that permits access for all passengers in a private vehicle.10 As part of this relatively blunt system, standard overseas visitors pay the same price as U.S. citizens and residents. Or put another way, locals enjoy no discount when visiting their home-nation parks. Often, Americans pay even more than foreign visitors to support national parks because, in addition to paying entry fees, most U.S. residents pay income taxes, which also partially support parks. Approximately $20 per U.S. taxpayer goes toward the National Park Service budget—each and every year, regardless of whether those Americans visit a national park.11 Asking overseas tourists who are not a part of the tax base to pay a little bit more to see remarkable sites in need of stewardship seems not only logical but prudent.

As many U.S. parks are facing record visitation and struggling through funding shortfalls, the idea of charging international visitors more than domestic ones has gained traction. The National Park System Advisory Board has suggested that differential pricing based on residency could be a way to increase park revenue, noting the success of that strategy in other nations.12 Additionally, the late Sen. Mike Enzi (R-Wyo.) pushed in 2019 to legislatively implement a surcharge for overseas visitors to help fund national parks by raising tourist travel and visa fees by $16 and $25, respectively.13

It seems like a pretty common-sense idea to me, what do you think?

George Wuerthner on the “Indian Iron Curtain”: His View of Tribal Environmental Miscreance and the Great Media Silence

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George Wuerthner did an impressive roundup of examples of Tribes wanting to produce useful things for the rest of us on their land. Many thanks to Patrick McKay for finding this! It’s fairly long and worthy reading in its entirety, but I did summarize and excerpt the parts I thought of particular interest to TSW folks.

Wuerthner  joins us in lamenting some of the choices made in media about what they cover- and what they don’t:

What I call an Indian Iron Curtain exists among the media and conservation organizations. Like the old Soviet Union Iron Curtain, which attempted to promote Communism and censored anything contradicting the notion that Communism was anything but a perfect social and political system. The Indian Iron Curtain exists to promote tribal people as somehow exemplary conservationists.

At the same time, any information that might temper that conclusion is ignored or suppressed. Of course, just as in the larger society, there are diverse opinions among tribal groups. They are no more monothetic than American society as a whole.

Like the fable about the emperor who wore no clothes, people are afraid, especially with the advent of the social justice movement, to suggest that tribal people are like other humans and are capable of good and bad conservation positions.

Anyone who questions the dominant paradigm that tribal people are somehow “naturally” environmenalists (which is a racist assertion in its own right)  is immediately branded as a racist, a colonialist, an imperialist, or, in some cases, a White male, which means you have no credibility since you are the ultimate beneficiary of “white privilege.”

Yet there is plenty of evidence—evidence that is too often ignored or overlooked–that tribal entities are perfectly capable of environmentally destructive policies.

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What I think is most interesting about George’s view is his view  that people who produce natural resources (used by everyone around the world) are only driven by the desire for money.

I must state that I am not judging these tribal decisions to exploit wild nature. I cannot say with any assurances that if presented with the opportunity to reap a fortune from oil and natural gas drilling, logging old-growth timber or mining a significant gold or copper deposit I would reject the financial prospects. Nevertheless, I would expect conservation organizations to criticize my choices.

There is a fundamentally different view from mine. Mine is that as long as people make useful things from natural resources, to eat, build housing, heat their homes and cook their food, transport things and provide electricity (just for a few examples), it is right for people who have the resources to share them with others who need them.  I think “sharing useful things with those who don’t have them” is a positive human view of the same phenomenon.

If using the resource, say, is morally wrong, then the folks who believe that should stop using them first, before they ask others to stop producing them.  National security-wise, it is bad juju to decide to stop producing things people need domestically.

Anyway, I think Wuerthner definitely has a point about what some conservation groups (and Colorado politicians) don’t mention, and media outlets don’t look into. Like when BLM had its webinar about the oil and gas regs, and the Tribal folks said they wanted “all of the above” and union folks were concerned.  I guess it either didn’t fit the narrative, or there were no media folks there.

Here are the topics:

Fossil fuel development Alaska

Badger-Two Medicine (I’m posting all this one because it’s related to NFs)

The last oil lease in the Badger-Two Medicine area of the Helena- Lewis and Clark National Forest in Montana was recently canceled. In numerous newspaper stories and among conservation groups, this was celebrated with many references to the Badger-Two Medicine as “sacred” land to the Blackfeet Indians, whose reservation borders the area. However, it is essential to note that the tribe does not own the national forest lands. Why that is important is critical to consider.

Badger Two Medicine Area on the Helena-Lewis and Clark National Forest, Montana. Photo George Wuerthner

What is never mentioned is that for decades, conservationists have tried to protect the Badger-Two Medicine as federal wilderness, which, given the strict limits on any development, would seemingly protect the “sacred” status of the area from any exploitation. Most recently, after the tribe agreed to a watered-down agreement to protect the Badger-Two Medicine by federal legislation introduced by Senator John Tester, the tribal representatives arrived in Washington to testify against the proposal, much to the chagrin of Senator Tester.

No environmental organizations reported on this reversal in tribal support for protecting the “sacred” Badger-Two Medicine.

Oil drill rig on the Blackfeet Reservation, Montana. Photo Tony Bynum

The Blackfeet have continuously opposed wilderness designation for the Badger Two Medicine. Meanwhile, the Blackfeet have promoted oil development on their reservation and the lands they control are leased for oil development. If the Blackfeet considered land “sacred,” wouldn’t they at least place some of the reservation off-limits to oil development.

However, at least some tribal members are not opposed to oil development per se, but rather who gets the financial benefit. Half of onshore oil and gas revenues from federal public lands goes to the federal treasury, while the other have is shared with the states where development occurred). Tribal members are willing to admit that while they oppose oil development on the national forest, some hope to get the Badger-Two Medicine transferred to tribal control so THEY can lease it for oil development.

Indian Reservations with Oil and Gas Wells

Navajo Coal

Other Tribal Coal

Mining

The media and many conservation groups repeatedly report when tribes oppose a mining operation or proposal but fail to note when they hold a positive perspective on mining.

Unbeknownst to most conservationists, most high-value mineral deposits are owned by Native people or the state of Alaska due to the selection under the Alaska Native Claims Settlement Act. Thus, in Alaska, much of the support for mining operations comes from Native corporations (the equivalence of tribes elsewhere in the US) and their representatives.

Various Alaska Mines

Thatcher Pass Lithium Mine

Navajo Lithium Mine

The Logging Section

As we know, Wuerthner seems to believe that Tribal wildfire concerns are basically about logging.

There is even legislation that would allow tribes to share in timber revenues from federal timber sales, an incentive that is designed to garner tribal support for more logging.

I think the point of the legislation is to give Tribes the same advantages as States. More of a justice thing and less of a bribe. In Alaska.

There is currently new legislation to transfer 115,000 acres of the Tongass National Forest to five tribal corporations (In Alaska, courts have ruled that Native corporations are “tribes”).

I know there are Elliot Forest interests here at TSW so:

TRIBAL OPPOSITION TO ELLIOT STATE FOREST PROTECTION

Recently, efforts to protect the Elliott State Forest in Oregon’s Coast Range were stymied by opposition from the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI), who demanded more logging of the area. The tribes have expressed “significant concerns regarding the limitations and constraints placed on the management of the overall forest and the acreage dedicated to reserves in the research design.”

An insider to the Elliott process confirmed that the Tribes have been expressing their opposition to limits on logging in the Elliott reserves for roughly a year.

Even though conservation groups have been working for years to protect the remaining old growth of the Elliott State Forest, I am unaware of any of these groups  who has publicly expressed any disappointment or criticism of the tribal position for more  logging.

BLM Oregon Land Transfer

Blackfeet and Quinalt have clearcuts

TPL Gave Land to Penobscot

Izembek Road (we’ve covered this before, Biden Admin supports ENGOs over Native Alaskan village)

The Sauk Suiattle Tribe opposes the reintroduction of grizzlies into the North Cascades. They see bears as an obstacle to their “treaty rights” in that it will make it more dangerous to gather berries, fishing, and hunting. Arguably, the grizzly bears were on the land before the Sauk Suiattle Tribe.

Well, there’s lots more.. wolves, fish, Camp Hale National Monument.

TRIBAL CONDEMNATION OF PARKS AND WILDERNESS

What I see as an even graver threat to conservation efforts is the on-going denigration of the entire concept of parks and preserves from the WOKE left, social science academics, and their tribal allies. It deserves an entire book, but basically, there is a growing condemnation of parks, wilderness, and other preserves as cultural genocide, colonialism, imperialism, and other such negative terminology that pose a long-term threat to efforts to protect wild Nature. Much of this opposition is based on flawed logic, a limited understanding of conservation biology and ecology, and a revisionist history.

For example, the Muccosukee  tribe in Florida is opposed to wilderness designation for the Big Cypress Preserve because they assert it will limit their ability to hunt, fish, and gather plants. “We’re opposing very, very hard right now because we don’t believe this is the right thing for the Big Cypress,” said Curtis Osceola, chief of staff for the Miccosukee Tribe. “The fear from the tribe is that a compromise is being made to put these lands into wilderness at the expense of the rights of the tribe, the rights of the public.”

It seems to me that there has been an environmental and conservation movement with a set of goals determined by folks within the movement.  Some I agree with, some I don’t.  Some seem unrealistic, and some have had social repercussions on working class people. Some just didn’t work as per stated intention (spotted owl).  Now our view of people whose views count is much broader – folks such as Native Americans and Alaskans are coming into focus-and we have younger people with different backgrounds and concerns- and the environmental movement itself.. their interests, their positions, may have to change.

AWR Litigates Project Initiated and Supported by Kalispels on Colville National Forest

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Interesting (free) article in the Capital Press.

A Montana environmental group sued the U.S. Forest Service on Tuesday to stop logging initiated by the Kalispel Tribe of Indians, who are concerned wildfires will start in overstocked federal forests and burn onto tribal lands in northeast Washington.

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The Tribal Forest Protection Act allows tribes to propose projects on federal land to protect adjacent tribal land. The Kalispel tribe asked the Forest Service in 2018 to reduce fire risks in the national forest.

“We believe an ‘All Lands-All Hands’ approach, involving all parties is a bold and necessary step to improve the current ecosystem conditions,” according to a tribal statement.

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The alliance asserts the Forest Service should have done an environmental impact statement, rather than the shorter environmental assessment.

The assessment gave short-shrift to carbon emissions from logging and their potential contribution to climate change, the lawsuit claims.

The lawsuit also alleges the assessment didn’t thoroughly investigate how timber harvests, prescribed burns and road-building would impact wildlife such as lynx, grizzly bears, wolverines and wolves.

More wolves may be poached if new or improved roads open access to wolf territories, according to the lawsuit.

The Alliance for the Wild Rockies has prominent supporters, according to its website, including former President Jimmy Carter; Sen. Sheldon Whitehouse, D-R.I.; music legend Carole King; and singer Gloria Estefan.

For some reason the reporter missed Reps. Grijalva and Maloney.

Now I think it’s highly likely that none of the supporters know the details of this project. I wonder if they know they are operating against apparent Tribal wishes and threats to their land and homes?

If we go to Rep. Grijalva’s website, he says..

As the first Americans, the Indigenous people of this region have culture and traditions embedded to the land. I am working to ensure that their rights as sovereign nations are not only respected, but emboldened, through policy-making at the federal level. We have an atrocious history of injustice towards the Indigenous people of this land that goes against the very values of our country and that we must constantly work to rectify. I will continue to be a strong voice for tribal rights in Congress whether it be fighting to protect sacred land from being sold to the highest bidder, working toward better health and economic opportunities for Native communities, or urging Congress to codify the tribal consultation process.

According to InfluenceWatch (and they could be wrong, and knowledgeable folks can correct me) Earthjustice is a vendor of AWR.

Here’s what Earthjustice says:

Earthjustice has a long history of partnering with Tribes, Native groups, and Indigenous communities to ensure their natural and cultural resources are protected for future generations. Today, as Native peoples lead from the frontlines of many pivotal environmental fights, our Tribal Partnerships Program is proud to continue that tradition.

Was it so long ago that the Colville Tribes sued the feds:

The Confederated Tribes of the Colville Reservation filed a lawsuit against the U.S. government on Wednesday, alleging federal agencies failed to fulfill their legally required duties before, during and after the 2015 wildfires that burned more than 240,000 acres and turned parts of the reservation into a “moonscape.”

So I wonder whether these supporters of AWR, or the funders (who are not included in the 990), pay attention to this aspect of what AWR is doing? Or if they know, do they support it? Because at least with Mr. Grijalva it doen’t sounds like “respected and emboldened” “rights as sovereign nations” to me.

 

 

 

How are Climate and Finance Interrelated and How Should They Be: Research Institutions and Insurance Markets

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I’ll propose Friedman’s law: The further people are from a location where a problem occurs, the less likely they are to understand it, and to view the problem through the lens of their own values, needs and philosophies- which may further their own goals, but not actually solve the initial problem.

I’ve also noticed a general tendency for forest policy to become more overrun by people and disciplines from outside our traditional communities.  I try to welcome these new folks with grace.  They bring interesting and novel ideas, energy, enthusiasm and sometimes lots of political pull and funding to get things done.  I’m concerned, though,  that our world of trees and people is becoming more abstract, controlled non-locally, and financialized (since, say, Hayfork doesn’t have a big presence in the financial sector, the latter two tend to go together).  Just yesterday I was on a phone call with some folks who thought that current investments in federal lands were not going to be “enough” and we need to have “durable financial mechanisms” to support federal land management, possibly including using federal lands for offsets.   Like I said, they might be right.  But I think we should be able to engage with local people, elected officials and practitioners and before the policy ideas become hardened.  That is,  groups go to their buds in Congress, who happen to be partisan, so when local people respond negatively (especially those who are of the Other Party), political lines are drawn and defended when they don’t need to be.  Perhaps we need more mechanisms to encourage discussions between these different communities.. local people and and practitioners, traditional forest users, interest groups and scientists,  and the new philanthropy, political and academic folks, earlier in discussions of policy options.

Anyway, today I have two stories that focus on financialization and climate, and how that affects, in turn,  research priorities and insurance rates.

Forest Science is Too Focused on Climate and Climate Finance; Nature Editorial

What’s interesting about this Nature open source editorial is how it internationalizes our own field of forest policy.

It has a pretty weird headline, though, “forestry social science is failing the needs of people who need it most”: way to blame the victim, Nature!  No, big scientific institutions are more interested in climate modeling than in solving today’s problems.  They allow scientists to prioritize, design, and fund and publish research without feedback from people.  But a full scale redesign of research governance is not what Nature has in mind..

The review is far from the first to highlight that research that should aim to benefit all stakeholders instead focuses on areas that are priorities for the governments of high-income countries. This is an important and timely reminder. It should not be difficult for the researchers involved in the world’s largest scientific networks — the IPCC for climate and IPBES for biodiversity — to create a shared agenda for the study of forests that extends beyond climate change and climate finance. And, given the need for such action, funders should respond positively to such a proposal.

Earth’s forests have the potential to benefit people everywhere. Researchers, policymakers and funders must ensure that everyone’s needs are taken into account.

There are actually plenty of forest social scientists around, though they are chronically underfunded, at least in the US.  There’s a difference between the people at IPCC and IPBES “aiming” to benefit all stakeholders and developing an agenda with stakeholders.  But perhaps the questions and solutions would then be local,  and not international.  Anyway, it’s fascinating to think about how over time the ideas of “climate” and “biodiversity” have changed the locus of inquiry (to international), changed who counts as experts and which disciplines, what questions are asked and what data is used (satellites) and so on.  Meanwhile, I hope social scientists are studying the non-powerline sources of wildfire ignitions  with the idea of understanding and reducing them.  So much more valuable than studies like “impacts of climate change in 2070 on beer production.”

Who’s Running and Supporting the Climate Insurance Scam?

Some of us simple people wonder what all the recent wildfire-but-not-really insurance drama is about.  Yes, climate change can increase risks.  But is there any reason to think that these increases won’t be gradual such that past pay-out history will gradually change, and insurers can still use history to set rates? Not to speak of the fact that for wildfires, the USG and philanthropists are spending zillions on the technology of detection and response, which will conceivably have some kind of effect.

And in my hood, hail is bigger than other risks to home and auto owners, and so far there isn’t a climate signal to hail.  So the stories don’t seem to add up.  I’ve found in my experience, that when claims are made that don’t seem to parse out logically, that there is usually politics of some kind involved, and too many efforts to understand might make you unpopular in certain quarters.

Anyway, there’s a professor named Jessica Weinkle who works at the coastal end of the climate/insurance drama biz, and she often has insights that are applicable to wildfire insurance, the bogus maps,  and all that.  The financial part of her analysis in this Breakthrough Substack article is over my head, but somehow I am not trusting of the financial industry.  Perhaps all the vitriol directed at the oil and gas industry is a magician’s trick to divert us from looking at what the financial folks are up to.  Like most folks, I use oil and gas products daily, and they are important for, among other things, fire suppression; but derivatives could go away tomorrow and I wouldn’t miss them.

Here’s an excerpt:

Last fall, Senators Sheldon Whitehouse (D-RI), who is chairman of the Senate Budget Committee, and Ron Wyden (D-OR), who is chairman of the Senate Finance Committee, announced an investigation into the ways in which insurance companies are managing “mounting risks from climate change.”

The senators foresaw climate change leading to a systemic financial crisis as rising insurance costs put heavy pressure on the mortgage market. “A widescale decline in coastal and wildland-urban interface (WUI) community property values would present a systemic risk to the U.S. economy,” they noted, “similar to what occurred in the 2007-2008 mortgage meltdown.”

The senators’ evidence for this looming catastrophe?

Insurers’ own climate change risk models.

Whitehouse and Wyden’s insurance investigations come after a series of hearings last summer that kicked off with a familiar character: Carney, along with Robert Litterman, a former asset manager and member of government advisory groups on climate related financial risk. Both argued that climate change is causing increasing frequency and intensity of weather extremes and losses creating risks to financial stability. Both argued for managing emission to control losses. For his part, Litterman, referenced his work as chairman for the development of a report of the Commodity Futures Trading Commission on managing climate risk. The report, of course, made ample use of Bloomberg funded modeling projects.

In a later interview about the investigation, Whitehouse zeroed in on climate risk and financial risk. “There’s a core underlying reason for the insurance problems that Florida’s experiencing right now and for the risks it faces,” Whitehouse said. “And that is the persistent failure to deal with the problem of climate change.”

This is wrong. The underlying problem is the failure of policymakers to inspire a critical debate about urban development and risk mitigation—and about the misguided investor risk perceptions that may be inflating insurance costs.

Food for thought.

Reforming Federal Land Laws, Too Difficult to Attempt?: Reflections on CU 2010 Land Law Conference

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Rich J. noted yesterday that public land laws are antiquated, which reminded me of this CU Law School conference at the 40th Review of the Land Law Review.   At that time, the thoughtful and talented planner John Rupe and I helped our Regional Forester,  Rick Cables with this presentation.  This was during the period of the 2005-2008 Planning Rule. Many thanks to CU Law for keeping all this posted on their website.

John Rupe posted an excellent summary of the conference at TSW  here.

Here’s one paragraph from John’s post:

The 1970 report led to the 1976 Federal Land Policy and Management Act (FLPMA).  According to Charles Wilkinson, FLPMA was a textbook example of Congress taking the long view – carefully studying the problem through a commission, and then crafting a bill which addressed those concerns.  He noted that the National Forest Management Act (NFMA) was very different – it went through Congress in less than a year because of a timber cutting crisis.

The speakers at the conference generally concluded that today’s political environment makes it difficult to repeat a 1970-type commission.  Congress is too polarized.  We may be too impatient to repeat the process that took six years from 1964 to 1970.  There may not be a political sponsor like Wayne Aspinall, the Congressman from Colorado who pushed for the formation of the Commission as part of a 1964 compromise legislative package which enabled the package of the Wilderness Act.  In addition, the problems today with public land management may not be grabbing the attention of the public, more concerned with the economy and other pressing matters.

Hmm… “too polarized” 14 years ago.  I wonder (certainly I run in less political circles) if the idea of “we are too polarized” keeps us from taking steps, perhaps incremental, to hash out and perhaps heal disagreements.  Words themselves have power, I believe, to lay tracks in our consciousness.  I’d instead ask “how can we design a system to get away from polarization?”.   If we had started with a small effort in 2010, where might we be today?

We could start with “what behaviors would we like to see in the next Admin that could help with that? or “what would be a tiny step that could be taken to develop a bipartisan process to remove the most problematic aspects of the current “mess o’ statutes”.

Anyway here’s a link to the conference, it’s full of interesting powerpoints and videos.  Reflecting from 14 years on, we seem to have all the same issues.

Well, David Bernhardt (he of the Trump Admin) talked about oil shale, you don’t hear about that anymore.  But not much about renewable and transmission buildout, and minerals were not strategic at the time.

Particularly with the current pressure toward Monumentizing, including what seems to be a massive media campaign, I’d like to draw your attention to the thoughtful presentation on Monumentizing by Jim Rasband: The Moral and Ethical Dimensions of Decision-Making on Public Lands: National Monuments and Beyond.

There’s also a set of slides of that presentation, with some quotes people might want to borrow for their own presentations.  Note how the Solum quote is related a bit to our discussion earlier this week of litigation as policy setting.. rights talk rather than justice talk.  Anyway, take a look at anything at the conference that interests you and we can discuss below.

Farm Bill Update

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I’m not following the Farm Bill, so it would be nice if a member of the TSW community would volunteer to keep us abreast of the latest. Here’s what came across my desk:

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Chairman Thompson, House Ag Committee, released additional details related to Farm Bill reauthorization last Friday. While the release does not include bill text, a more detailed summary is now available at:

detailed_summary_-_pdf.pdf (house.gov)

 

While bill text is not yet available for review, there are several interesting provisions. Some of the notable items include:

 

  • Includes H.R. 1450 to authorize counties and tribes to retain and use timber sale receipts on land covered by the GNA agreement.
  • Includes H.R. 3562 to provide flexible housing partnerships to alleviate rural housing challenges and provide up to 100-year lease terms and renewals on administrative sites.
  • Reauthorizes and modernizes the Wood Innovation Grant Program, reduces the non-Federal match, and authorizes grants for hauling hazardous fuels reduction materials to locations that can utilize it. Reauthorizes and modernizes the Wood Innovation Grant Program, reduces the non-Federal match, and authorizes grants for hauling hazardous fuels reduction materials to locations that can utilize it.
  • Establishes a CE for high priority hazard tree activities.
  • Includes a Cottonwood Fix
  • Increases the threshold required to advertise timber sales on National Forest System land to reflect inflation.
  • Extends the authorization of Resource Advisory Committees and the Regional Forester appointment pilot program.
  • Provides the Forest Service direct hire authority for Job Corps graduates.

 

Stay tuned as actual bill text from the House Ag Committee could be available in the next week or so. You may also recall, Chairwoman Stabenow also released the following summary of her Farm Bill last week at:

Rural Prosperity and Food Security Section-By-Section (senate.gov)

 

Similarly, we do not have bill text from Senate Ag, but the summary includes the following notable provisions (among others):

  • Authorization for Lease of Forest Service Sites. Increases lease terms to 100 years.
  • Expands GNA to allow counties and Tribes to retain revenue received from the sale of timber. Allows authorized restoration activities in certain circumstances on non—Federal land.
  • Authorizes a pilot conservation finance program
  • Builds on the REPLANT Act by establishing dedicated staff for the Forest Service Reforestation, Nurseries, and Genetic Resources program, expands technical assistance and workforce development training for nursery and tree establishment programs, and creates a grant program for State, Tribal, and private nurseries to improve nursery production capacity.
  • Expands the reach of the Wood Innovations Grant Program by reducing the match requirement
  • Establishes an Urban and Community Forestry Office within the Forest Service and a microforest grant program

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